NATIVE CUSTOM

220

andthen defendant returned toJohannesburg andSoftagainwent back to her people. Although it is alleged that Joseph received the dowry and that

Mina

received from plaintiff damages which she handed to defendant, these witnesses have not been called and no satisfactoryexplanation hasbeen givenas to

why

thishas not been done. 1 consider that defendant has failed to establish his allegation that he contracted a customary union with Sofi.

As

defendant has admitted that heis living with Sofi as

man

and wife and plaintiff has proved that he contracted a valid customary union with her, he (plaintiff) is entitled to damages.

The

appeal should be allowed with costs and the judgment of the Native Commissioner altered to one for plaintiff as prayed with costs.

It appears that, in this case, a default judgment was granted by the Clerk of the Court on 7th

May,

1954.

On

11th May, 1954, application was

made

for a rescission of this defaultjudg- ment. There is nothing on the record to show whether the application wasgranted or not. Counsel in thisCourt haveboth agreed that the attorneys in the Native Commissioner’s Court must have agreed to the default judgment being rescinded but neglected to ask the presiding officer to

make

the necessary note

on

the record. ThisCourt has, therefore, dealt with the case as if the default judgment had been rescinded. In any case, the defaultjudgmentwas irregular.

As

thiswas aclaim fordamages the Clerk ofthe Court should havereferredthe request forjudg- ment bydefault to theCourt in terms of sub-section(7)ofsection forty-one of the Rules of the Native Commissioners’ Courts promulgated underGovernmentNoticeNo. 2886of 1951.

Key

(Member): Jconcur.

Schaffer(Member): Iconcur.

ForAppellant: Mr. H.J.C.Kelly, LadyFrere.

For Respondent: Mr. T. Stewart, King William’s

Town.

221

Held further: (Menge, Permanent

Member,

dissentiente) that an allegation of desertion on the part of the husband is

not sufficient to put the question of the husband’s fitness to have custody of the children in issue.

Held further: That a wife by customary union is entitled to claim maintenance for her children under

common

law, and the fact that Native

Law

^is applied tothe main ^claim, does not debar her from so counter-claiming under

Common

Law.

Cases referred to:

Mokoena

v. Mofokeng, 1945 N.A.C. (C.

&

^O.),89 followed.

Ex

parte Minister of Native Affairs in re

Yako

v. Beyi, 1948 (1) S.A. 388.

Appeal from the Court of the Native Commissioner, Rusten- burg.

Marsberg (President):

—

In the Native Commissioner’s Court, at Rustenburg, ^plaintiff, George Inganga sued Platjie Kabi and

Anna

Inganga,father and daughter respectively, as defendants for an order directing them to hand over two children to the plaintiff.

Plaintiff alleged that a customary union subsisted between

him

and Anna; that “_there are two children born of the said union, boys of 4 ^years and

H

^{years,and thathe} (plaintiff) isthe lawful guardian of the said children and entitled to their custody”;

that

Anna

deserted him during October 1953 and is

now

residing with her father, the first defendant; that she took the children with her and that both she and’ heh father refuse to

hand

them over.

Both defendants admitted that a customary union subsisted and that the children are the children of the union, but denied that plaintiff is entitled to the custody as alleged or at all.

There were further allegations and counter allegations of desertion on the part of the spouses.

A

counter claim was lodged by second defendant, Anna, for maintenancefor herself and children at £10 a month.

At the outset of the trial the Native Commissioner indicated that Native

Custom

would apply.

On

the pleadings in so far as the main claim was concerned he wasjustified in taking that course.

When

the matter

came

before his Court for trial it

was argued and held that the only point in dispute on the main claim was a question of law i.e. whether the father (plaintiff)has a legal right to the custody ofthe children.

Reading the pleadings fairly I, too,

came

to that conclusion, the main allegation being that plaintiff

was

the lawful guardian of the children and as such entitled to their custody.

To

^this

defendants admitted that plaintiff was the father but denied that for that reason or at all he was entitled to custody of the children. In this contention defendants obviously are wrong.

Native

Law

in regard to guardianship of children born ofcusto-

mary

unions is settled. (See

Mokoena

v. Mofokeng, 1945 N.A.C.

C.

&

O., 89).

The

father is thelawful guardian and isentitled as of right to the custody of his children.

No

evidence was led on the main claim. Mr. Michel

who

appeared for appellants submitted that the record should be returned for evidence’to be taken in regard to plaintiff’s fitness to have custody of the children. But on a fair reading of the pleadings there would be no justification for us to adopt that course. Plaintiff isipso jure custodian of hischildren.

To

deprive him of that legal right an Order of Court is necessary.

There is no allegation in the pleadings that plaintiff is not a

222

fit and proper person to retain custody and there is, therefore, no call for evidence on this point.

An

allegation of unfitness mustbe specially pleaded and proved.

The

NativeCommissioner wasjustified in givingjudgment on the pleadingswithout evidence and as the law is wholly on plaintiff’s side judgment had to go

in his favour.

Its form will however need correction.

This Court has previously indicated that it does not favour orders couched in a form which savours of the handing over of chattels. Orders in regard to children should be sought in the form of declarations of right.

As

the Courts also do not favour the removal of children of tender age from the natural care of their mother the children in the case before us must remain with defendant

Anna

until they reach six years of age.

The

appeal on the main claim is dismissed with costs but the Native Commissioner’s judgment is

amended

to read:

—

“ Plaintiff is declared to be entitled to the custody of the twochildren born of hiscustomary union with

Anna

Inganga but the Court orders that the children remain with their mother until each reaches the age of six years.”

On

the counter-claim I agree with the judgment which has been prepared by

my

brother Menge.

Oelschig (Member):

— ^On

^{the main} claim (claim in convention)

I agree with judgment of the President and on the counter- claimIconcur in thejudgment of

Menge

(Permanent Member).

Menge, Permanent

Member

(dissentiente as regards the claim in convention):

—

Respondent (plaintiff in the Court below), sued his father-in- law and his wife (now appellants) for custody of his two male children aged 4 years and ly years at the time of the action in January, 1954.

He

alleged that these children were born of a customaryunion between himself and the second defendant which still subsists;

that she deserted him in October, 1953, taking the two children with her; that she is

now

residing with her father, the first defendant, and that she and her father refuse to let him have custody of the children.

The

defendants’ plea in effect admits these allegations save that the desertion is denied and in fact laid at the door of plaintiff.

The

wife in turn counterclaims for maintenance at £15 ^(later reduced to £10) per

month

in respect of the two children and herself.

Evidence was heard only on the counterclaim.

The

wife testified to various assaults committed on her by plaintiff for which he was twice fined £1 and, on the last occasion,

when

she left him, sent to prison for 14 days without the option of a fine. Under cross-examination she stated that they had lived together for 9 years and that plaintiff assaults her ^“every time he is drunk^”. In the last assault, she states, her

arm

was fractured. She maintains that it was impossible for her (o live with defendant any longer by reason of these assaults and that she therefore left him. After having left plaintiff she did return to him once.

He

had fetched her and she went with him because he threatened to stab her. She ran

away

again the next day. Such is her evidence; the evidence of her father is mainly on the question of what it costs him to maintain the children

No

evidence was given by or on behalf of plaintiff.

The

Assistant Native Commissioner found for plaintiff with costs on the main claim and granted absolution on the counterclaim.

223

The

Native Commissioner reasoned that the plaintiff’s claim was purely a question of law which required no evidence, and that the plaintiff must succeed as “ the rights of a father to the custody of his children are absolute

He

held in effect that the plea disclosed no defence.

He

intimated at the outset that the case would be tried under Native Custom.

On

this basis he also disposed of the counterclaim, holding that in Native

Law

a ^“wife hasno right of action whatever against her husband for the enforcement of his duties towards her^”.

He

cites in support of his contentions passages from Seymour’s recent book on Native Law.

The

defendants

now

appeal against the judgment on the main claim on the grounds that the father is not ^"ipso facto”

entitled to the custody without consideration of the children’s interests.

The

judgment on the counterclaim isattacked for two reasons That in law the wife is entitled to retain the children,and, that she had established her right tothe maintenance ontheevidence led.

The

appeal on the main claim must ⁱⁿ

my

opinion succeed.

The

proposition that in Native

Law

the right of a father to the custody of his children is absolute is subject to a

number

of qualifications. In at least one instance it is not operative at all, i.e.

among some

tribes

when

a wife is driven

away

with an imputation of witchcraft. But in every instance it is subject to the Court’s overriding discretion in the interests of the children.

The

law on this subject has been set out very clearly (save for the questionable description of the father’s right as absolute), by Sleigh, President in

Mokoena

v. Mofokeng, 1945 N.A.C. (C

&

^O.), 89 as follows:

—

“Under Native

Law

and

Custom

the right of the male partner in a customary union to the custody of his minor children is absolute, and this whether or not the union has been dissolved.

He

can legally be deprived of the custody onlyifitcan beshownthatheis not afitandproper personto havethe custody, or, that owing to the tenderage of the children, it would not be in their interest to live apartfrom theirmother and thehusband rendersitdangerous or intolerable for her to live with him. In such cases the Court

may

place the children in the custody of the mother or some other person, and

may make

such order for their support as it

may deem

fit.”

Now,

the Native Commissioner states in his reasons for judg- ment, and counsel for the respondent also argued before us.

that the defendants nowhere in their pleadings allege that the respondent is not a fit and proper person to have the custody of tho children. That

may

be so, but plea alleges desertion by the plaintiff. Consequently the question of his character is

squarely placed in issue; for a father

who

deserts his wife and breaks up the

home

is normally not a fit and proper person to have custody of his children.

The

Native Commissioner con- sidered that the father’s right to custody is absolute irrespective of the interests of the children. By thus misdirecting himself he was precluded from considering what bearing the evidence has on the suitability of the father to have the custody. In

my

opinion the evidence adduced on thecounterclaim, and which the plaintiff did not contradict, strongly supports the defendant’s plea to the main claim that the plaintiff is not entitled to the custody of the childicn.

As

regards the counterclaim it is no doubt correct that it?

Native

Law

a wife has no action for maintenance against her spouse.

The

reason is that the dowry which her spouse has to provide will maintain her when she falls on evil days. Liirthcr- more, a wife by customary union has no claim against her spouse for maintenance for herself under

common

law. But the Native Commissioner overlooked the fact that every Native

woman

has at

common

law the right to sue the father of her

224

children for their maintenance.

To

^{this extent the} counterclaim

is perfectly valid.

The

decision of the Native Commissionerto try the action under Native

Law

is sound so far as it goes;but

it is only provisional and he cannot thereby deprive the

woman

of the right she has to sue under the ordinary law of the land [see

Ex

parte Minister of Native Affairs in re

Yako

v. Beyi, 1948 (1) S.A. 388].

The woman

in this case could quite easily have brought her claim for maintenance of the children under the simplified procedure provided for in Ordinance No. 44 of 1903 read with section ten bis of Act No. 38 of 1927. But there is nothing to stop her from proceeding by

way

of

summons

or counter- claim if she so desires.

The

Native Commissioner should have dealt with the counter- claim on the basis of the wife’s rights under

Common Law

and should have heard evidence from both parties in regard to their resources and then decided what award to

make

in regard to the maintenance of the children.

In the result, then, I considerthatthe appeal should beupheld with costs.

The

Native Commissioner’s judgment on the main claim should be altered to one of absolution from the instance with ^costs.

The

judgment on the counterclaim should be set aside and the matter referred backfor further attention.

For Appellant: Mr. R. I. Michel.

For Respondent; Adv. H. Wolpe, instructed by Messrs

De

Villiers

&

^Pohl.

CENTRAL NATIVE APPEAL COURT.